Lutheran Church-Missouri Synod v. Federal Communications Commission Appellants Reply Brief

    SCH EDULED FOR O R A L A R G U M E N T  JA N U A R Y  12,

In the
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

1 9 9 8 R E C 7 _ r .
I '  ' " " ' I

97 MOV 2$ r .  1!
C ' V H J -

No. 97-1116

THE LUTHERAN CHURCH - MISSOURI SYNOD,

Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Appellees.

On Appeal from the Federal Communications Commission

APPELLANT’S REPLY BRIEF

Of Counsel:

Leonard J. Pranschke 
PRANSCHKE & HOLDERLE
1611 Des Peres Road 
Suite 300
St. Louis. Missouri 63131-1850 
(314) 965-6455

Gene C. Schaerr 
Nathan A. Forrester 
SIDLEY & AUSTIN
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 736-8000

Richard R. Zaragoza 
Kathryn R. Schmeltzer 
Barry H. Gottfried 
Scott R. Flick
FISHER WAYLAND COOPER 
LEADER & ZARAGOZA L.L.P.
2001 Pennsylvania Ave., N.W., Suite 400 
Washington, D.C. 20006-1851 
(202) 659-3494

Attorneys for Appellant 
The Lutheran Church-Missouri Synod

Dated: November 21, 1997



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................................................................................ ii

SUMMARY OF ARGUMENT.............................................................................................1

ARGUMENT......................................................................  3

I. THE COMMISSION’S DEFENSE OF ITS CONTINUED 
ADHERENCE TO ITS “KING’S GARDEN” RULING IS 
INCONSISTENT WITH ITS STATED RATIONALE FOR
ITS AFFIRMATIVE ACTION REQUIREMENTS .................................... 3

II. THE FCC CANNOT REQUIRE THE CHURCH TO ABANDON 
ITS RELIGIOUS FREEDOMS AS A CONDITION OF RENEWING
ITS LICENSES FOR ITS BROADCAST STATIONS ........................... , 8

III. THE CONSTITUTIONAL ISSUES RAISED IN THIS CASE
WERE THE ISSUES LEFT OPEN BY THIS COURT IN KING’S 
GARDEN.....................................................................................................10

IV. THE CHURCH’S ARGUMENTS ARE NOT BARRED BY
SECTION 405 OF THE COMMUNICATIONS A C T ...............................13

V. NEITHER THE FCC, ITS AMICUS, NOR THE NAACP HAS
SHOWN THAT THE APPLICATION OF THE EEO RULE TO 
THE CHURCH COMPLIED WITH THE EQUAL PROTECTION 
CLAUSE .....................................................................................................17

VI. THE FCC CANNOT JUSTIFY ITS ARBITRARY AND 
CAPRICIOUS RULING THAT THE CHURCH LACKED
CANDOR.................................................................................................... 21

CONCLUSION 24



TABLE OF AUTHORITIES

CA$ES Page

* Adarand Constructors. Inc, v. Pena. 515 U.S. 200 Cl995) ........................ 3,17,19

Adelphia Communications Corp. v. FCC. 88 F.3d 1250 (D.C. Cir. 1996)..........  15

American Scholastic TV Programming Foundation v. FCC.
46 F.3d 1173 (D.C. Cir. 1995)............................................................................... 14

American Telephone and Telegraph Company v. FCC. 978 F.2d 727
(D.C. Cir. 1992)..................................................................................................... 17

Bechtel v. FCC. 10 F.3d 875 (D.C. Cir. 1993) ..............................................  16, 17

Bynum v. United States Capitol Police Board. Civil Action No. 97-1337 
(D.D.C.) ...................................................................................................................8

* Chadmoor Communications. Inc, v. FCC. 113 F.3d 235 (D.C. Cir. 1997) . . .  14, 16

* Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Dav Saints v. Amos. 483 U.S. 327 (1987) ............................................  9, 11

Craig v. Boren. 429 U.S. 190(1976)......................................................................  18

Dynalantic Corp. v. Department of Defense. 115 F.3d 1012 (D.C. Cir. 1997) . . .  18

EEOC v. Townlev Engineering & Manufacturing Company.
859 F.2d 610 (9th Cir. 1988) ............................................................................... 11

FCC v. League of Women Voters of California. 468 U.S. 364 (1984).................. 9

*/ Authorities upon which we chiefly rely are marked with asterisks.

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Haitian Refugee Center v. Gracev. 809 F.2d 794 (D.C. Cir. 1987)......................  18

Killinger v. Samford University. 113 F.3d 196 (11th Cir. 1997) ........................ n

King’s Garden. Inc, v. FCC. 498 F.2d 51 (D.C. Cir.)(1974)..............  ........ passim

Lamprecht v. FCC. 958 F.2d 382 (D.C. Cir. 1991)................................................ 7

* Lujan v. Defenders of Wildlife. 504 U.S. 555 0  992^.......................................... 18

MCI Telecommunications Corp. v. FCC. 10 F.3d 842 (D.C. Cir. 1995) ............  13

Melody Music. Inc, v. FCC. 345 F.2d 730 (D.C. Cir. 1965) ..............................  14

* Monterey Mechanical Co. v. Wilson. 125 F.3d 702 (9th Cir. 1997)........  17, 19, 20

NAACP v. Federal Power Comm’n. 425 U.S. 662 (19761 .................................... 4

Omnipoint Corp. v. FCC. 78 F.3d 620 (D.C. Cir. 1996)......................................  14

Southwestern Bell Telephone Co. v. FCC. 100 F.3d 1004 (D.C. Cir. 1996) . 13, 15

Sullivan v. Little Hunting Park. 396 U.S. 229 (1969)..........................................  18

Suncom Mobile & Data. Inc, v. FCC. 87 F.3d 1386 (D.C. Cir. 1996) ................  18

Turner Broadcasting Svstem. Inc, v. FCC. 512 IJ.S. 622 (1994) .......................... 9

FCC CASES

Fox Television Stations. Inc.. 10 FCC Red 8452 (1995), recon. denied,
11 FCC Red 18393 (1996)..............................................................................  14,21

Miami Broadcast Stations. 5 FCC Red 4893 f  15 (1990)....................................  19

National Religious Broadcasters. Inc.. 43 F.C.C. 2d 451. 452 (1973) .................. 7

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Notice of Proposed Rule Making in Streamlining Broadcast 
EEO Rule and Policies. 11 FCC Red 5154 (1996) ............ 7, 20

Petition for Rulemaking To Require Broadcast Licensees To Show 
Nondiscrimination in Their Employment Practices. 13 F.C.C. 2d 766 (1968) . . .  12

Radio Station WRIF. Inc.. 7 Radio Reg. (P&F) 2d 30 (ALJ 1965)......................  21

Rov M. Speer. 3 Communications Reg. (P&F) 526 (1996)..................................  14

MISCELLANEOUS

42 U.S.C. § 2000bb et seq. (Supp. V 1993)....................................................  2, 8, 9

United States Constitution, amend. I ............................................................ passim

United States Constitution, amend. V ........................................................ 2, 17, 18

STATUTES

42 U.S.C. § 2000e-l (1972)............................................................................... 5, 11

47 C.F.R§ 73.2080(1996) ..............................................................................  4,19

47 U.S.C. § 405(a)(2).............................................................................................13

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SCHEDULED FOR ORAL ARGUMENT JANUARY 12, 1998

In the
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1116

THE LUTHERAN CHURCH - MISSOURI SYNOD,

Appellant
v.

FEDERAL COMMUNICATIONS COMMISSION. ET AL..

Appellees.

On Appeal From The Federal Communications Commission

APPELLANT’S REPLY BRIEF

SUMMARY OF ARGUMENT

In its initial brief, The Lutheran Church - Missouri Synod (the “Church”) 

established that the rulings by the Federal Communications Commission (the “FCC” or the 

“Commission”) in The Lutheran Church/Missouri Svnod (Memorandum Opinion and

Order!. 12 FCC Red 2152 (1997) (the “MO&O”!. must be reversed. The FCC’s brief



(“FCC Brief’) does not and cannot show that the MO&O was correct or that the conditions

imposed on the Church’s license renewals for its radio stations were lawful.

The FCC, its amicus and intervenor NAACP distort the record below and the 

position of the Church in this appeal. Contrary to the suggestions by the Government and 

the NAACP, the Church has not argued that affirmative action is bad, and certainly not that 

race discrimination is acceptable. The Church is committed to nondiscrimination on the 

grounds of race at its radio stations and elsewhere in the Church. The Church firmly 

believes that all persons are equal in the eyes of God, seeks members from all races and 

has, for many years, had its own affirmative action policies. ID 36-49.

But the Church must reject the FCC’s application of its affirmative action rule in a 

way that penalizes the Church for exercising its right to hire persons who share its religious 

mission. The MO&O imposed an affirmative action reporting requirement on the Church 

because it preferred to hire Lutherans for job positions that the FCC deemed “not 

reasonably connected with espousal of the Church’s religious views,” MO&O 4, and 

because the Church failed to do enough to hire minority applicants for those “non- 

espousal” positions. This ruling violates the First Amendment and the Religious Freedom 

Restoration Act, as well as the equal protection component of the Fifth Amendment. First, 

it burdens, without compelling justification, the right of religious organizations to organize 

and conduct their internal affairs in accordance with their religious mission. Second, it

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discriminates against religious broadcasters by curtailing their right to hire personnel who 

share their viewpoint, without imposing the same burden on broadcasters who promote a 

non-religious viewpoint. Third, it penalizes the Church for not having engaged in enough 

race-conscious hiring, despite the Supreme Court’s recent decision in Adarand 

Constructors. Inc, v. Pena. 515 U.S. 200 (1995) (“Adarand”') condemning such 

government-imposed practices where, as here, they are not narrowly tailored to serve a 

compelling governmental interest.

The FCC’s brief does not and cannot show that the MO&O was correct or that the 

conditions imposed on the license renewals for the Church’s radio stations were lawful.

The Church anticipated and refuted many of the FCC’s arguments in its initial brief, and 

there is no need to address those arguments further. Several of the Commission’s 

contentions, however, do require further discussion.

ARGUMENT

I. THE COMMISSION’S DEFENSE OF ITS CONTINUED ADHERENCE TO 
ITS “KING’S GARDEN” RULING IS INCONSISTENT WITH ITS STATED 
RATIONALE FOR ITS AFFIRMATIVE ACTION REQUIREMENTS

The Commission’s brief makes it clear that there is a fundamental and legally fatal

inconsistency between the FCC’s justification for its affirmative action requirements for all

job positions at broadcast stations and the Commission’s rationale for continued adherence

to the ruling in King’s Garden. Inc.. 38 F.C.C. 2d 339 (1972'). aff d sub nom.. King’s

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Garden. Inc, v. FCC. 498 F.2d 51 (D.C. Cir.), cert, denied. 419 U.S. 996 (1974) (“King’s 

Garden”).

On the one hand, the Commission defends the affirmative action requirements in 

Section 73.2080 of its rules, 47 C.F.R § 73.2080 (1996), forcing licensees to be race­

conscious in their hiring processes for all job positions, by claiming that all station 

employees have an effect on programming — i.e.. that all employees have a role in ensuring 

“that programming fairly reflects the viewpoints of minority groups and women.” FCC 

Brief at 34; see also FCC Brief at 4, 28, 36. The only judicial authority that the 

Commission cites in support of its rationale for its affirmative action requirements is 

dictum in a footnote in a Supreme Court opinion stating that the FCC can adopt an EEO 

Rule insofar as the rule ensures that “licensees’ programming fairly reflects the tastes and 

viewpoints of minority groups.” FCC Brief at 28 (quoting NAACP v. Federal Power 

Comm’n. 425 U.S. 662, 670 n.7 (1976)).

On the other hand, the Commission defends its continued adherence to its King’s 

Garden ruling, allowing religious organizations to give preferential hiring treatment at their 

radio stations on the basis of religious knowledge or affiliation only for jobs that the 

Commission deems are “reasonably connected with espousal of the Church’s religious 

views" over the air, by contending that “non-espousal” positions at radio stations do not 

affect programming. FCC Brief at 31 (arguing that the King’s Garden policy “simply does

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not limit [a religious station’s] ability to continue to provide ..  . programming” reflecting 

its unique viewpoint); gee also FCC Brief at 25-26. On the basis of this contention, the 

FCC’s brief summarily rejects the Church’s argument that in order to present their unique 

programming viewpoints effectively, religious organizations must be allowed to use 

religious preferences for all job functions at their radio stations for which the organizations 

deem it appropriate.

This fundamental inconsistency in the Commission’s defense is illustrated by 

focusing on its ruling concerning the Church's use of religious preferences for certain 

secretarial positions. The FCC’s decisions below hold that this preference violates the EEO 

Rule because, in the Government’s view, the job functions of secretaries are not reasonably 

connected with programming — Lê , with the espousal of the Church’s viewpoint. ID 

200-201. According to the Commission, the Church therefore may not take into 

consideration an applicant’s religious beliefs when it engages in race-conscious affirmative 

action recruitment for secretarial positions. MO&O at f  23 n.9. But i f  the secretarial 

positions do not affect programming, the Commission has no ground for applying its 

affirmative action requirements in the first place.- It defies logic for the FCC to argue that

Intervenor NAACP, but not the FCC, also suggests that the EEO Rule is justified as a 
means “of promoting licensee character.” NAACP brief at 11 n.15. But it is ludicrous to 
suggest that the Church’s character is somehow flawed because it used religious 
preferences in the manner expressly permitted by Section 702 of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e-l (1972). Both the NAACP and the United States 
as amicus, but again not the FCC, suggest that affirmative action requirements are

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the race of a secretary can affect programming, but that the religious beliefs of that 

secretary will have no effect on the programming of religious organizations.

The FCC cannot have it both ways. If only jobs relating to the espousal of religious 

views over the air can have religious job criteria because only those jobs affect 

programming, then there is no justification for the application of the FCC’s affirmative 

action requirements to non-espousal jobs in the first place. Alternatively, if the FCC’s 

affirmative action requirements are justified because all station employees affect 

programming, then a fortiori religious organizations must have the right to use religious 

job preferences because of the effect all employees have on the unique programming of 

religious broadcasters. If the FCC’s justification for affirmative action is accepted, the 

Commission is in effect admitting that the King’s Garden ruling is limiting the ability of 

religious organizations to express their viewpoints, which — for the reasons explained in 

the Church's Initial Brief -- discriminates against religion and violates the Church’s free 

speech rights under the First Amendment.*''

justified because they remedy the effects of past discrimination or deter future 
discrimination. E.g.. NAACP brief at 11 n.15, United States brief at 27. But neither the 
NAACP nor the United States points to any record that establishes these claims. In any 
event, the Church established in its initial brief (at 26-27) that the FCC cannot justify the 
MO&O as a means of eliminating religious or racial discrimination.

The Commission’s brief also seeks to justify the FCC’s affirmative action requirements 
as a means to create training opportunities for minorities and women. FCC Brief at 36. 
But the Commission cites no authority in support of its position. In any event, its 
argument based on training opportunities is again stronger in support of the use of

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It should be noted that, if anything, the links between religious beliefs and station 

programming are stronger and more direct than the hypothesized links between the race or 

gender of station employees and any particular programming. The Commission concedes 

that religious organizations, and the Church’s radio stations in particular, have unique 

viewpoints and provide an independent source of value-laden programming. FCC Brief at 

31. The link between employees’ beliefs and the programming viewpoints of religious 

organizations is not difficult to understand, given that religion is based on shared faith and 

beliefs. By contrast, the Commission admits, as it must, that it is “aware that all 

minorities, as well as women, do not share the same viewpoints.” Notice of Proposed Rule 

Making in Streamlining Broadcast EEO Rule and Policies. 11 FCC Red 5154, 5155-56 

(1996) (“Streamlining”-). Moreover, this Court has held that there is no evidence of any 

meaningful link between ownership of stations by women and any particular kind of 

programming. Lamprecht v, FCC. 958 F.2d 382, 395-98 (D.C. Cir. 1991). The

religious preferences for all job functions at stations owned by religious organizations -- 
it provides training opportunities for those wishing to express the religious organization’s 
viewpoint over the air. Yet the FCC has held that a church cannot use religious 
preferences even for all announcers on their radio stations, which would provide training 
opportunities for people who would then be able to espouse the church’s viewpoint over 
the air. National Religious Broadcasters. Inc.. 43 F.C.C. 2d 451, 452 (1973). Once again, 
the FCC cannot have it both ways. If affirmative action creates training opportunities, 
then the Church must be allowed to train people with Lutheran backgrounds to espouse 
the Church’s viewpoint effectively.

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Commission has not established that the link is any stronger between the gender or race of 

employees and programming.

II. THE FCC CANNOT REQUIRE THE CHURCH TO ABANDON ITS 
RELIGIOUS FREEDOMS AS A CONDITION OF RENEWING ITS 
LICENSES FOR ITS BROADCAST STATIONS__________________

The FCC contends that it has the power to impose an “enforceable public

obligation” on the Church, as a condition of having the “privilege” of using a radio station,

requiring the Church to abandon its right to prefer individuals with Lutheran training for all

job functions where the Church believes it appropriate. FCC Brief at 24-25, 27, 39. But

the Church did not waive its religious freedoms merely because it is a licensed broadcaster.

For the reasons explained by the Center for Individual Rights and National Religious

Broadcasters in their brief as amici curiae (at 21-25), the FCC may not subject the

Church’s broadcast licenses to unconstitutional conditions. And as the Church showed at

length in its initial brief, the Commission has no compelling reason to force the Church to

abandon religious preferences, and therefore lacks the compelling government interest

required under the Religious Freedom Restoration Act. 42 U.S.C. § 2000bb et seq. (Supp.

V 1993) (“RFRA”)2 and the First Amendment. The Commission also lacks the

The Church explained in its Initial Brief (at 27 n.7) why RFRA remains applicable to 
federal rulings such as the MO&O. The brief for amicus American Center For Law And 
Justice (at 8) shows that in another case, Bvnum v. United States Capitol Police Board. 
Civil Action No. 97-1337 (D.D.C.), the United States has agreed that RFRA has not been 
held unconstitutional as applied to the federal government and remains good law in that

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compelling interest required by the First Amendment to discriminate against religious 

viewpoints within the realm of viewpoint, belief or ideology.-

To be sure, the Court has permitted the FCC to place certain affirmative obligations 

on broadcast licensees where the conditions relate to problems arising from spectrum 

scarcity. Turner Broadcasting System, Inc, v. FCC. 512 U.S. 622. 636-638 (1994). But 

even assuming for the sake of argument that the conditions placed on the Church’s 

employment practices in the MO&O had something to do with the physical limitations of 

the broadcast medium, and further assuming for argument’s sake that RFRA did not 

require the FCC to have a compelling interest for its policy, the FCC would still need to 

establish that the restrictions on the Church were “narrowly tailored to further a substantial 

governmental interest.” FCC v. League of Women Voters of California. 468 U.S. 364, 380 

(1984). This it has not done. As shown in Section I above, the FCC’s supposed

context. The FCC is surely in no position to contradict this position of the United States, 
as it attempts to do in footnote 9 of its brief. Similarly, the United States as amicus in 
this case should not be heard to claim, in direct contradiction to its own position in 
another case, that RFRA is unconstitutional. See United States’ brief at 15 n.6.

The FCC correctly acknowledges in the MO&O and in its brief (at 10) that Corporation 
of the Presiding Bishop of the Church of Jesus Christ of Latter-Dav Saints v, Amos. 483 
U.S. 327 (1987) (“Amos”) establishes that the Commission can allow religious 
organizations to have religious preferences in hiring for all job positions without violating 
the Establishment Clause of the First Amendment. The Commission’s contention later in 
its brief (at 26) that allowing religious preferences would raise “serious questions” under 
the Establishment Clause is inconsistent with its earlier admission and wrong under 
Amos.

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justification for restricting religious preferences at religious stations is based on a 

fundamental, internal inconsistency. Moreover, as shown in the Church’s Initial Brief (at 

25-26), the FCC cannot explain why restricting the ability of religious organizations to use 

religious hiring preferences is likely to promote the FCC’s only stated goal, “programming 

diversity.” Indeed, such a restriction on the Church and other religious organizations is 

likely to encourage programming homogeneity, rather than diversity. The FCC has 

therefore presented no valid justification for the application of its King’s Garden policy 

under any standard.

III. THE CONSTITUTIONAL ISSUES RAISED IN THIS CASE WERE
THE ISSUES LEFT OPEN BY THIS COURT IN KING’S GARDEN

Contrary to the FCC’s repeated insistence, the Church’s arguments in this case are 

not foreclosed by King’s Garden. The Court explicitly stated in King’s Garden that it was 

considering only a facial challenge to the FCC’s ruling concerning a religious exemption, 

observed that “[t]he Commission ha[d] set itself the difficult task of drawing lines between 

secular and religious aspects of the broadcasting operations of its sectarian licensees,” and 

cautioned that future problems with the application of the FCC’s ruling would “be 

questions for another day.” King’s Garden. 498 F.2d at 53 n.l, 63. The issues raised here 

by the Church, relating to the process of line drawing and to the application of the

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Commission’s ruling in King's Garden, are precisely the matters that the Court stated 

would require continuing judicial scrutiny.

The FCC’s brief completely fails to refute the Church’s showing (at 21-31 of its 

brief) that later cases and the record in this case establish that the Governmentally imposed 

line drawing process undertaken in this case constitutes a substantial burden on the 

Church’s exercise o f religion because it necessarily affects the way the Church carries out 

its religious mission. The FCC’s case against the Church amply confirmed the fears 

expressed in Amos. 483 U.S. at 336, 343-44, that the line drawing process would chill 

religious freedoms and cause unacceptable entanglement with religion. Church Brief at 

24-25 (citing Tr. 734-37; MO&O at 8 n. 6).- The FCC does not even attempt to rebut the 

Church's showing about the substantial effects of its intrusions on, for example,

The FCC is wrong when it argues that Amos relates only to nonprofit activities of a 
church and therefore does not apply to hiring at the Church’s FM station. The Supreme 
Court held in Amos that Section 702 of Title VII, 42 U.S.C. § 2000e-l (1972), was 
constitutional as applied to nonprofit activities, but did not hold that the result would 
have been different for profit making activities of a religious organization. The courts of 
appeals for other circuits have held that under Amos all the job functions of an institution 
are exempt so long as the institution’s purpose and character are primarily religious. 
Killinger v. Samford University. 113 F.3d 196, 198-99 (11th Cir. 1997); EEOC v. 
Townlev Engineering & Manufacturing Company. 859 F.2d 610, 618 (9th Cir. 1988). 
Here, it is the Church itself that is the employer, not a commercial enterprise. See Church 
Ex. 4, attachment 6. Moreover, as the ALJ found, in the Church’s view both of its radio 
stations are dedicated to the task of carrying out the Church’s Great Commission from 
Christ. ID H 8. The Church’s FM station was not alchemized into a separate non-exempt 
“commercial enterprise” merely because the Church found it necessary beginning in 
March 1983 to accept advertising because voluntary contributions were no longer 
sufficient to fund both of the Church’s radio stations. See ID 1J17.

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fundraising activities involving all the staff. Church Brief at 24-25.

Rather than showing that the Government can engage in a line drawing process 

between secular and religious job functions at religious organizations without interfering 

with First Amendment rights, the FCC’s brief demonstrates that its undertaking is based on 

the fundamental contradiction described in Section I above. Similarly, the FCC has no 

response on the merits to the Church’s demonstration that the MO&O violates the First 

Amendment by discriminating against religious viewpoints within the realm of viewpoint, 

belief or ideology, other than the self-contradictory contention that “non-espousal” job 

functions do not affect programming. FCC Brief at 31. This grave defect in the FCC’s 

justification for arrogating to the Government the task of determining what job functions at 

religious organizations are religious could not have emerged at the time this Court decided 

King's Garden in 1974 — at that time the Commission was not defending its EEO Rule by 

claiming that it led to diversity of programming, but was instead citing its “public interest” 

mandate to enforce a “National policy” against unlawful discrimination. Petition for 

Rulemaking To Require Broadcast Licensees To Show Nondiscrimination in Their 

Employment Practices. 13 F.C.C. 2d 766, 769-70 (1968).

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IV. THE CHURCH’S ARGUMENTS ARE NOT BARRED BY 
SECTION 405 OF THE COMMUNICATIONS ACT

The Court should also reject the Commission’s attempt to avoid Court review on 

the merits of certain challenges to the MO&O by invoking 47 U.S.C. § 405(a)(2), which 

precludes review in the absence of a petition for reconsideration where the FCC has “been 

afforded no opportunity to pass” on a question of law or fact. According to the FCC, the 

Church failed to give it a fair opportunity to pass on the following claims: (a) there is no 

distinction between the Church’s statement which supposedly exhibited a “lack of candor” 

and the statements in other cases that the Commission held did not warrant a hearing, much 

less establish lack of candor (FCC Brief at 21 n.l); (b) the holdings in the MO&O are 

unconstitutional and violate the First Amendment, in particular the Free Speech and Free 

Exercise Clauses (FCC Brief at 30); and (c) the FCC acted arbitrarily and capriciously in 

failing to reevaluate the basic propositions undergirding its 20 year old ruling in King’s 

Garden before it applied that ruling to the Church (FCC Brief at 40).

The FCC is wrong: the Church raised all of these issues below. See Southwestern 

Bell Telephone Co. v. FCC. 100 F.3d 1004, 1007-08 (D.C. Cir. 1996) ('“Southwestern 

Bell”) (Section 405 does not preclude consideration of the “same basic argument in a more 

polished and imaginative form than the Commission saw”); accord MCI 

Telecommunications Corp. v. FCC. 10 F.3d 842, 845-46 (D.C.Cir. 1995). Moreover, 

because it would have been futile for the Church to raise the arguments again in a petition

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for reconsideration, the arguments are properly before this Court. Chadmoor 

Communications. Inc, v. FCC. 113 F.3d 235, 239-40 (D.C. Cir. 1997) (“Chadmoor”); 

accord Omnipoint Coro, v. FCC. 78 F.3d 620, 635 (D.C.Cir. 1996). The facts in this case 

bear no resemblance to the situation in American Scholastic TV Programming Foundation 

v- FCC. 46 F.3d 1173, 1177-78 (D.C.Cir. 1995), on which the Commission relies, where a 

party admitted it failed to challenge the rule at issue and attempted to circumvent the 

exhaustion requirement by relying on the fact that other parties to another proceeding 

raised the matter three years earlier.

The FCC cannot seriously contend that the Church never gave it the opportunity to 

consider whether the Church’s supposed “lack of candor” in using the word “required” 

rather than “preferred” in a legal argument could be distinguished from the statements for 

which the FCC imposed no sanctions in Fox Television Stations. Inc.. 10 FCC Red 8452 

(1995) (“Fox Television’”), recon, denied. 11 FCC Red 18393 (1996); Rov M. Speer. 3 

Communications Reg. (P&F) 526 (1996). The MO&O specifically addressed — and 

erroneously rejected — the argument that this case could not be distinguished from Fox 

Television. MO&O at 22. The FCC may be complaining that the Church did not 

explicitly cite Melody Music. Inc, v. FCC. 345 F.2d 730 (D.C. Cir. 1965) below in support 

of the argument that similarly situated applicants must be treated similarly with regard to

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“lack of candor” rulings. But because the Church raised the same basic argument below, 

and the FCC in fact considered the argument, the issue is properly before this Court. 

Southwestern Bell. 100 F.3d at 1007-08.

As for the Church’s First Amendment rights claims under the Free Speech and 

Exercise Clauses, the FCC admitted in its Emergency Motion for Remand Of The Record, 

filed on September 19, 1997, (at 4) that the issue was in fact “raised before the agency,” 

although the Commission contended that it was “barely raised” and complained about the 

Church’s “expansion” of its “First Amendment free speech claim.” The FCC should not be 

heard to contend now that the Church’s argument was not raised during the agency 

proceedings. Moreover, the basic argument was in fact presented by the Church below.

The Church’s filings at the Commission mentioned free speech concepts in addition to 

principles of religious exercise. E.g.. Church’s Proposed Findings of Fact and Conclusion 

of Law (Sept. 6, 1994) at 88-89 (“The Church does maintain . . . that its judgments as to 

which positions require religious knowledge, training, or expertise may not be subjected to 

second-guessing by a government agency. Such scrutiny unconstitutionally chills the 

Church’s rights under the First Amendment. . . . ”) This Court, moreover, has repeatedly 

recognized that it is appropriate to “expand” on appeal an argument presented to the 

agency. See e.g.. Southwestern Bell. 100 F.3d at 1007.-

By contrast, in Adelphia Communications Corp. v. FCC. 88 F.3d 1250, 1255 (D.C. Cir.
1996), on which the Commission relies, the Court held that an appellant could not raise a

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In any case, the First Amendment issues are properly before this Court because it

would have been futile for the Church to raise its First Amendment claims again in a 

petition for reconsideration. Chadmoor. 113 F.3d at 239-40. The Commission was 

wedded to its ruling in King’s Garden and it was wedded to rejecting the Church’s 

arguments on the basis of that ruling. MO&O Tflf 9-14. Indeed, the FCC’s brief to this 

Court, in which the Commission repeatedly uses the mantra that “King’s Garden is 

controlling” to reject the Church’s First Amendment and statutory arguments, confirms that 

any petition for reconsideration would have been futile.

Finally, the Church raised the argument before the FCC that under Bechtel v. FCC. 

10 F.3d 875 (D.C. Cir. 1993) (“Bechtel II”). the Commission had a duty to re-examine the 

underlying premises of King's Garden before it could apply that ruling in this case.

Indeed, the whole thrust of the Church’s arguments below, as the FCC acknowledges in its 

counterstatement of the facts in its Brief at 8-9, was that the holding of King’s Garden had 

been proved by later developments to be no longer valid. The MO&O addressed, and 

wrongly rejected, those arguments. MO&O TflJ 9-14. In any case, as noted above, any 

petition asking the Commission to reconsider its continued adherence to King’s Garden

constitutional challenge because it had never referred to the Constitution during the 
administrative proceeding at the FCC nor suggested that the rule at issue burdened 
speech.

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would have been futile, as the FCC’s brief to this Court confirms.-

V. NEITHER THE FCC, ITS AMICUS, NOR THE NAACP HAS SHOWN 
THAT THE APPLICATION OF THE EEO RULE TO THE CHURCH 
COMPLIED WITH THE EQUAL PROTECTION CLAUSE_________

Neither the Commission, its amicus, nor the NAACP has shown that the FCC’s

invasion of the Church’s religious autonomy can be justified under the Fifth Amendment

strictures on affirmative action requirements. Adarand, 515 U.S. 200. Contrary to the

FCC’s contention, the Church has standing to bring a Fifth Amendment challenge. Where,

as here, “the government requires or encourages [an organization,] as a condition of

granting . . . [it] a benefit, that. . . [it] discriminate against others based on their race or

sex.” that organization suffers “injury in fact” and has standing. Monterey Mechanical Co.

v. Wilson. 125 F.3d 702, 707 (9th Cir. 1997) f“Monterev Mechanical’”).

The Church has shown all that is required for standing: (1) injury in fact resulting

The Church is frankly mystified by the Commission’s other contention as to why Bechtel 
II is not applicable. According to the FCC, the Church is challenging a “rule” made after 
notice and comment, rather than a policy, and Bechtel II therefore has no bearing. But 
the Church has challenged the holding in the FCC’s letter ruling in King’s Garden, which 
is certainly not a rule issued after notice and comment. To be sure, the Commission 
promised in its 1972 letter ruling that it would consider the issue in a rulemaking 
proceeding at a later time. King’s Garden. 38 F.C.C. 2d at 337. But the Commission 
never docketed such a proceeding. The FCC’s claim (at 40 of its brief) that the matter 
now belongs in a rulemaking proceeding is the sort of manipulative argument that this 
Court has condemned. American Telephone and Telegraph Company v. FCC. 978 F.2d 
727, 731-32 (D.C. Cir. 1992) (criticizing the FCC for shifting manipulatively between 
adjudicative and rulemaking procedures in dealing with a particular problem).

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not only because it is being forced to do race-conscious hiring, but also because it has been 

prevented by the affirmative action requirements from exercising its First Amendment 

right to use religious preferences, and as a result has been sanctioned by the FCC for 

allegedly not fully complying with affirmative action requirements, MO&O ^ 23; (2) a 

causal connection between these injuries and the FCC’s application of its EEO Rule; and 

(3) that it is likely that reversal by this Court will redress the injuries. Luian v. Defenders 

of Wildlife. 504 U.S. 555, 561-63 09921; cf. Dynalantic Coro, v. Department of Defense. 

115 F.3d 1012, 1016 (D.C. Cir. 1997) (holding that a contractor had standing to challenge 

a set-aside program). The facts here are in no way similar to the facts in Suncom Mobile & 

Data. Inc, v. FCC. 87 F.3d 1386, 1388 (D.C. Cir. 1996), relied upon by the FCC, in which 

the Court held the appellant lacked standing because it had no actual existing interest in the 

licenses at issue.-

Tuming to the merits, the contention of the FCC, its amicus and the NAACP that

Even if the Church could not show injury in fact under the Luian test, it still would have 
third party standing to raise the rights of applicants against whom the Church would have 
been forced to discriminate as a result of the Commission’s ruling. “If the government 
has directly interfered with the litigant's ability to engage in conduct together with the 
third party,” for example, by forcing the Church to discriminate against certain job 
applicants, “and if a statute or the Constitution grants the third party a right to engage in 
that conduct with the litigant,” as the Fifth Amendment does here, “the litigant has 
standing to challenge the government’s interference by invoking the third party’s rights.” 
Haitian Refugee Center v. Gracev. 809 F.2d 794, 808 (D.C. Cir. 1987). See e.g.. Craig v. 
Boren. 429 U.S. 190, 192-97 (1976) (vendor had third party standing to challenge statute 
imposing different drinking age limits on males and females); Sullivan v. Little Hunting 
Park. 396 U.S. 229, 235-37 (1969).

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the EEO Rule relates only to “recruitment’’ and to “creating larger candidate pools” is 

belied by the case quoted by the Commission in support of this contention in its brief (at 36 

n.8): in Miami Broadcast Stations. 5 FCC Red 4893, 4894 ^ 15 (1990), the Commission 

stated that it focuses “on a station’s overall efforts to recruit, hire and promote minorities.” 

(Emphasis supplied). The Commission’s EEO Rule explicitly requires stations to analyze 

their efforts “to recruit, hire, and promote minorities and women . . . . ” 47 C.F.R.

§ 73.2080(c)(5) (1996).

In Monterev Mechanical, the Court of Appeals for the Ninth Circuit ruled that 

under Adarand. the Government was required to establish that there was a compelling 

governmental interest before it could impose a “softer system of discrimination” in which: 

(a) contractors were required to make “good faith efforts,” including documented efforts to 

comply with affirmative action steps listed by the Government; (b) adherence to the 

specific steps was monitored by the Government; and (c) a contractor could avoid 

disqualification, or any need to show that it had adhered to “good faith” steps, by “seeing 

to it" that it had used a certain percentage of minority subcontractors. The Ninth Circuit 

held that this system “encourages” discrimination to avoid the need to prove “good faith” 

and implicates Adarand. See Monterev Mechanical. 125 F.3d at 713-15.

Just as in Monterev Mechanical, the FCC’s EEO Rule contains a set of affirmative 

action steps, not just a general duty of “good faith.” And as the rulings in this case

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graphically illustrate, the FCC certainly monitors adherence to its affirmative action 

requirements. Most importantly, the FCC uses a “processing guideline” comparing the 

number of minorities and females on stations' overall staffs to the availability of minorities 

and females in the relevant Metropolitan Statistical Area as part of its initial analysis of 

whether a station’s EEO performance needs to be investigated further. If this initial 

analysis shows that a station is in compliance, the FCC does not begin the sort of further 

intensive investigation that it conducted of the Church’s performance here. Streamlining.

11 FCC Red at 5159-61 Iff 9-11.- Thus, while the FCC's requirements may be a bit 

“softer” than the system at issue in Monterev Mechanical, there is no question that as in 

Monterev Mechanical, the FCC’s system “encourages” stations to meet numerical 

standards in order to avoid a further investigation in which they would need to show that 

they undertook recruiting, hiring and promotion actions that meet the Government’s 

affirmative action standards.

It should be noted that hires, rather than outreach, is the focus of the only employment 
information that the FCC requests of licensees on an annual basis. The Annual 
Employment Report, Form 395-B, calls for a detailed numerical analysis of the racial, 
ethnic and gender composition of broadcasters’ full time and part time staffs. See 
NAACP Exhibit 24 (Church’s Annual Employment Reports'): see also ID f  109, f  74 
Tables 1 and 2 (reporting data on hires used by the judge in evaluating the Church’s EEO 
performance).

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VI. THE FCC CANNOT JUSTIFY ITS ARBITRARY AND
CAPRICIOUS RULING THAT THE CHURCH LACKED CANDOR

The FCC’s arguments in its brief serve to confirm that the MO&O’s ruling that the 

Church exhibited a “lack of candor” in connection with a legal argument advanced by 

counsel was merely a makeweight to punish the Church for allegations that the Church 

disproved and that the Commission lacked jurisdiction to sanction.

The FCC cannot justify its ruling that the Church had any intention to deceive 

merely because the Church stated that it had a “requirement” for classical music 

knowledge rather than that it had a “preference” for such knowledge. The FCC does not 

dispute that a consultant recommended that the Church adopt this criterion for salespersons 

and that the Church sought such individuals. ID fflf 139-145. And as the FCC’s own 

Review Board stated: “the critical word was embedded in and essential to a pre-conceived 

legal argument contrived by counsel, [and] a laymen [j/c] may not have fully appreciated 

the significance of its use, Fox Television Stations. Inc.. 77 R.R. 2d 1003, 1066 ^ 68.” See 

also Radio Station WRIF. Inc.. 7 Radio Reg. (P&F) 2d 30 (ALJ 1965) (the very highest 

quality of proof should be adduced before an adverse decision concerning candor is made 

because of the effects on a licensee’s possessions, profession and good name). The 

Church's former counsel testified that while the statement that knowledge of classical 

music was a “requirement” was probably an overstatement, she would have made the same 

argument in any event. ID f  160. Moreover, well before the renewals were designated for

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hearing, the Church had informed the Commission that it “enforce[d] this requirement by 

making every effort to hire such persons whenever it can; it only employs salespeople who 

do not possess this expertise on those occasions when it is unable to secure suitable persons 

with the requisite classical music background.” ID ^ 166.

Faced with these fundamental weaknesses in the MO&O’s ruling that there was 

“lack of candor,” the FCC’s brief attempts to confuse the issue, and to prejudice the Court 

against the Church, by making irrelevant statements about other allegations in this case. 

Thus, the Commission repeats its allegation that the need for classical music expertise 

“may have had a direct adverse impact on the recruitment of Blacks,” (FCC Brief at 6), 

which was rejected by the ALJ. ID 1 197; see ID f  149. The FCC also pretends that the 

Church “represented” that “it restricted its recruitment efforts . . .  because of the classical 

music criterion,” (FCC Brief at 13). when the statements had nothing to do with 

“restrictions on hiring” but were instead part of a technical legal argument made after the 

license term about the appropriate labor pool against which to judge the Church’s 

minority hiring performance. ID^J 155. Finally, the F'CC’s brief is expansive about a 

purported instance of “lack of candor” in the Church’s September 1989 license renewal 

applications which the Commission admitted in the MO&O was barred by the statute of 

limitations. MO&O f  26. But the Church’s statement that it “actively” sought female and 

minority referrals in its description of its EEO recruitment -- even assuming it were

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relevant, which it is not — was not a lack of candor at all. The Church demonstrated that its

acting general manager did not lack candor in using the word “active” because he believed 

in good faith that the Church did have an active EEO program at the time of the license 

renewal application. See ID f  134.—''

Not only is the MO&O's ruling that there was a lack of candor not supportable, the 

FCC’s argument in its brief that it “fully considered the nature, circumstances, extent and 

seriousness” of the Church’s supposed offense in fining the Church the maximum $25,000 

(FCC Brief at 14) is not supported by the record. The Commission failed to cite any 

previous case supporting the imposition of the maximum $25,000 fine for lack of candor 

involving a legal argument made by counsel. In fact, the Church’s 70 year history of 

compliance with Commission rules (ID ^ 260) dictated a far different result.

The description in the brief of amicus United States (at 16) of the supposed “lack of 
candor” in the Church’s renewal application completely fails to mention that the FCC 
held that any sanction was barred by the statute of limitations. This is typical of much of 
the United States’ statement of the facts, which is often inaccurate, has nothing to do with 
the issue addressed by the United States, and is clearly designed to prejudice the Court 
against the Church. For example, the United States’ statement that the Church “never 
implemented an EEO program” leaves out the critical phrase “that fully complied with 
the Commission’s detailed EEO requirements.” Rev. Bd. Dec. ^ 24. The brief of the 
NAACP as intervenor is similarly unreliable and contains many of the NAACP’s 
complaints about the decisions below. CE.g.. at page 7 n. 11 where the NAACP complains 
that discovery rulings in this case were wrong). The NAACP has chosen to dismiss its 
appeal, and has no right to lodge its attacks on the MO&O in the guise of an intervenor’s 
brief in support of the FCC.

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CONCLUSION

Neither the FCC, its amicus nor the NAACP has shown that the rulings in the 

MO&O on appeal can be legally justified. For the reasons given in the Church’s Initial 

Brief and above, the Court should grant the relief specified in the conclusion to the

Church’s Initial Brief.

Of Counsel:
Leonard J. Pranschke 
PRANSCHKE & HOLDERLE, L.C.
1611 Des Peres Road, Suite 300 
St. Louis, MO 63131-1850 
(314)965-6455

Gene C. Schaerr 
Nathan A. Forrester 
SIDLEY & AUSTIN
1722 Eye Street, N.W.
Washington, D.C. 20006 
(202) 736-8000

Dated: November 21, 1997

Respectfully submitted,

Richard R.
Kathryn R. Schmeltzer 
Barry H. Gottfried 
Scott R. Flick
FISHER WAYLAND COOPER LEADER 

& ZARAGOZA L.L.P.
2001 Pennsylvania Ave., N.W. Suite 400 
Washington, D.C. 20006-1851 
(202) 659-3494

Attorneys for Appellant 
The Lutheran Church-Missouri Synod

J :\DAT A\CL!ENTM2\4250\425(W)00.048

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CERTIFICATION OF COUNSEL

Pursuant to Circuit Rule 28 (d) (1), the undersigned counsel hereby certifies that 
Appellant’s Reply Brief contains no more than the number of words allowed by the 
Court’s rules for a reply brief, L&., 6,250 words. For purposes of this certification, counsel 
has relied on a word count reported by his word processing system, in which footnotes and 
citations are included as part of the word count.

CERTIFICATE OF SERVICE

I, Barry H. Gottfried, a member of the Bar of this Court, do hereby certify that true 
and correct copies of the foregoing Appellant’s Reply Brief were served on this 21st day of 
November, 1997, upon the following:

Daniel M. Armstrong, Esq.
David Silberman, Esq.
Office of the General Counsel 
Federal Communications Commission 
1919 M Street, N.W., Room 602 
Washington, D.C. 20554

Robert B. Nicholson, Esq.
Department of Justice
Appellate Section
Patrick Henry Building
601 D Street, N.W., Room 10535
Washington, D.C. 20530

David E. Honig, Esq 
3636 16th Street, N.W.
Suite B-366
Washington, D.C. 20010

Isabelle Katz Pinzler, Esq. 
Mark L. Gross, Esq.
Lisa Wilson Edwards, Esq. 
Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6078

Mark Troobnick, Esq.
American Center for Law & Justice 
1000 Thomas Jefferson St., N.W. 
Washington, D.C. 20007

Lawrence W. Secrest III, Esq.
Wiley Rein & Fielding 
1776 K Street, N.W.
Washington, D.C. 20006



Michael P. McDonald, Esq. 
Center for Individual Rights 
1233 20th Street, N.W.
Suite 300
Washington, D.C. 20036

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